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3. After US prosecutors mistakenly file confidential…

Trials & Litigation

After US prosecutors mistakenly file confidential memo, is their challenge to congestion pricing doomed?

By Debra Cassens Weiss

April 28, 2025, 9:51 am CDT

Federal prosecutors have been kicked off a challenge to congestion pricing in New York City after they mistakenly filed a confidential memo saying the government is “very unlikely” to be successful.

The U.S. attorney for the Southern District of New York will be replaced on the case by the U.S. Department of Justice’s Civil Division, according to a statement by the U.S. Department of Transportation.

Law360, Courthouse News Service, ABC News and the New York Times (here and here) have coverage.

“Are SDNY lawyers on this case incompetent or was this their attempt to resist?” the Transportation Department said in a statement cited by news media. “At the very least, it’s legal malpractice. It’s sad to see a premier legal organization continue to fall into such disgrace.”

The U.S. attorney’s office said in a statement the court filing “was a completely honest error and was not intentional in any way. Upon realizing the error, we immediately took steps to have the document removed.”

The confidential memo dated April 11 said there is “considerable litigation risk” in defending efforts by Sean Duffy, the secretary of the Transportation Department, to block the congestion pricing program using an argument that it was not statutorily authorized.

The Federal Highway Administration might be able to properly end the program, however, under regulations concerning the termination of cooperation agreements that no longer further agency priorities, the memo said.

U.S. District Judge Lewis J. Liman of the Southern District of New York said in an April 24 order the mistaken filing raises two questions. The first is whether there is sufficient basis to seal the document after it was published by media outlets. The second is whether the mistaken disclosure waives the applicable attorney-client privilege.

Liman, an appointee of President Donald Trump during his first term, is temporarily keeping the memo under seal and is asking for parties’ responses with due dates of May 2 and May 7.

Disclosure of the memo is “a lawyer’s nightmare,” but it is unlikely to be a deciding factor in the case, said Eric A. Goldstein, a senior attorney with the Natural Resources Defense Council, a nonprofit environmental advocacy group that supports congestion pricing, in an interview with the New York Times.

Little in the memo was surprising, and Liman, the judge in the litigation, is already familiar with the issues after hearing four other challenges to congestion pricing, Goldstein said.

Corey Bearak, a lawyer who opposes congestion pricing, told the New York Times that the Trump administration should consider other ways to challenge the program, including by joining litigants fighting congestion pricing in state court.

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3. Which firms, legal groups, law profs signed…

Law Firms

Which firms, legal groups, law profs signed briefs supporting Perkins Coie in challenge to punitive Trump order?

By Debra Cassens Weiss

April 8, 2025, 8:52 am CDT

Amicus briefs supporting Perkins Coie are piling up in its challenge to a punitive order against the law firm signed by President Donald Trump.

The briefs have been filed by more than 500 firms, more than 360 law professors, nearly 350 former judges and a “cross-ideological group” that includes the American Civil Liberties Union and the Institute for Justice, a nonprofit public interest firm, report Law.com (here and here); Bloomberg Law; Reuters (here and here); Law360; and press releases by Law Forward, a nonprofit organization, and the ACLU.

The firm brief is mostly signed by smaller and midsize firms. According to Law.com, larger and well-known firms that signed are:

  • Arnold & Porter Kaye Scholer

  • Covington & Burling

  • Crowell & Moring

  • Davis Wright Tremaine

  • Fenwick & West

  • Foley Hoag

  • Freshfields US

  • Hanson Bridgett

  • Jenner & Block

  • Manatt, Phelps & Phillips

  • Munger, Tolles & Olson

  • Patterson Belknap Webb & Tyler

  • Stoel Rives

  • Susman Godfrey

  • Wilmer Cutler Pickering Hale and Dorr

Perkins Coie sued after Trump issued an executive order that suspended Perkins Coie’s security clearance, limited access to federal buildings by its lawyers, blocked government hiring of firm employees, and required federal agencies to take steps to terminate contracts with the firms and their clients—if the firm provided services in connection with the client contract.

WilmerHale and Jenner & Block also sued after they were targeted with executive orders. Covington & Burling was also targeted in a more limited executive order; it has not filed suit.

As of April 3, four other firms reached deals with Trump to avoid punitive measures. The deals included pledges of pro bono support on issues supported by Trump and the firms.

A Perkins Coie spokesperson told Reuters that the firm was grateful to the firms that signed the amicus brief “in our challenge to the unconstitutional executive order and the threat it poses to the rule of law.”

Above the Law is compiling firms’ reactions to actions by the Trump administration in its “BigLaw Spine Index.” Law.com has published a timeline of the executive orders and firms’ response to them.

The legal advocacy groups that signed the ACLU brief are:

  • The ACLU

  • The ACLU of the District of Columbia

  • The Cato Institute

  • The Electronic Frontier Foundation

  • The Foundation for Individual Rights and Expression

  • The Institute for Justice

  • The Knight First Amendment Institute at Columbia University

  • The National Coalition Against Censorship

  • The Reporters Committee for the Freedom of the Press

  • The Rutherford Institute

  • The Society for the Rule of Law Institute

Judges who signed an amicus brief include retired state supreme court and appellate justices and former federal judges. Among them are:

  • Retired Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia

  • Retired Judge Diana Gribbon Motz of the 4th Circuit at Richmond, Virginia

  • Retired Judge Kathleen M. O’Malley of the U.S. Court of Appeals for the Federal Circuit

  • Retired Judge Thomas I. Vanaskie of the 3rd Circuit at Philadelphia

  • Retired U.S. District Judge Shira A. Scheindlin of the Southern District of New York

Law professors who signed the professor brief are from law schools that include Harvard Law School, Yale Law School, Stanford Law School, the University of California, the Georgetown University Law Center, the Northwestern University Pritzker School of Law, Cornell Law School, the New York University School of Law, the University of Chicago Law School, Columbia Law School and the University of Michigan Law School.

Professors who signed the brief include Michael C. Dorf of Cornell Law School, Mark A. Lemley of Stanford Law School, Owen Fiss of Yale Law School, Harold Hongju Koh of Yale Law School, Leah Litman of the University of Michigan Law School, Eugene Volokh of the University of California at Los Angeles School of Law and Pamela S. Karlan of Stanford Law School.

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3. This ‘reinvigorated’ doctrine could be used…

Constitutional Law

This ‘reinvigorated’ doctrine could be used to challenge Trump’s tariffs

By Debra Cassens Weiss

February 5, 2025, 11:59 am CST

Importers and others who want to challenge tariffs imposed by President Donald Trump could argue that he doesn’t have that power—but the argument isn’t a slam dunk, legal experts say.

Trump has cited the International Emergency Economic Powers Act of 1977, a law giving presidents authority to restrict trade in some circumstances, as authority for his power to impose tariffs. At issue is whether the IEEPA gives Trump that power and whether the “major questions doctrine” leads to the conclusion that it does not, Bloomberg Law reports.

Trump has imposed a 10% tariff on imports from China, but he paused threatened tariffs of 25% on goods from Canada and Mexico. Trump said tariffs are needed because of “the grave threat to the United States posed by the influx of illegal aliens and illicit drugs” at the borders, creating a national emergency.

Under the major questions doctrine, Congress must “speak clearly” when authorizing an executive branch agency to make decisions of vast economic and political significance, wrote Ilya Somin, a professor at the George Mason University Antonin Scalia Law School, at the Volokh Conspiracy. If a statute is ambiguous, the presumption is that the power was not granted.

The major questions doctrine has been “reinvigorated” by the U.S. Supreme Court in striking down the federal eviction moratorium and vaccine mandates imposed during the COVID-19 pandemic, Bloomberg Law says.

The Supreme Court also cited the doctrine when it ruled that the Environmental Protection Agency didn’t have broad power to regulate climate change and that the Biden administration didn’t have the power to forgive student loans.

Somin argued that imposing “massive tariffs” is “pretty obviously” a decision with vast economic and political significance with high costs to the public. And the statute under which Trump claimed authority is far from clear, as were the statutes in the student loan and eviction moratorium cases, he wrote.

The IEEPA is a “vague statute” that authorizes presidents to restrict trade when there is “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy or economy of the United States, if the president declares a national emergency with respect to such threat,” Somin wrote.

Peter E. Harrell, an adjunct senior fellow at the Center for a New American Security, also sees an argument regarding the major questions doctrine, particularly for “universal baseline” tariffs imposing a specific percentage charge on all imports.

“Courts should find that allowing Trump to waive his magic sharpie to sign an IEEPA executive order imposing tariffs would upset the balance Congress has long sought to strike when it delegates its tariff authority to the president,” he wrote in a Lawfare post.

Apart from the major questions doctrine, an argument could be made that the plain text of the IEEPA doesn’t give presidents tariff authority, Harrell wrote.

Article 1, Section 8 of the U.S. Constitution gives Congress the authority to set tariffs and regulate commerce with foreign nations. A president’s power to set tariffs comes from delegated authority by Congress, Harrell wrote. The IEEPA gives a president the power to ban or limit exports and imports, but the list “notably” does not explicitly include the power to impose tariffs or taxes.

Saikrishna Prakash, a professor at the University of Virginia School of Law, told Bloomberg Law that the opposite argument is that the broad powers granted by the law should include the lesser power of imposing tariffs.

The “IEEPA allows a very broad power to ban commerce, and so given that, why can’t the president do something less?” Prakash asks.

Somin sees yet another argument that the the nondelegation doctrine applies. It allows broad delegations of power when they are based on an “intelligible principle.” Some Supreme Court justices have expressed interest in “tightening up” the doctrine, and a tariff challenge “might be a good opportunity to do just that,” he wrote.

Somin doesn’t argue that a challenge to tariffs is likely to succeed.

“But the arguments are strong,” he wrote, particularly those in support of the major questions doctrine.

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3. Ethics complaint dropped against Texas AG…

Ethics

Ethics complaint dropped against Texas AG over challenge to 2020 election results

By Debra Cassens Weiss

January 28, 2025, 8:54 am CST

The Texas Commission for Lawyer Discipline has dropped an ethics complaint alleging that Texas Attorney General Ken Paxton made dishonest statements in December 2020 litigation seeking to overturn 2020 election results in four battleground states.

The commission dropped the complaint after the Texas Supreme Court dismissed a similar ethics complaint filed against Brent Edward Webster, Paxton’s first assistant attorney general, report Law360, the Washington Times, the Dallas Morning News and Houston Public Media.

The state supreme court ruled in the Webster case that the Texas Constitution’s separation-of-powers doctrine prevents disciplinary authorities from filing an ethics complaint against executive branch attorneys, according to the commission’s motion to dismiss an appeal in the Paxton case.

The complaints stemmed from an original jurisdiction lawsuit challenging 2020 election results filed in the U.S. Supreme Court by Paxton and Webster.

The Texas Supreme Court ruled in the Webster case Dec. 31.

“By second-guessing the contents of initial pleadings filed on behalf of the state of Texas, under the attorney general’s authority, the commission has intruded into terrain that this court’s precedent has described as belonging to the attorney general,” the state supreme court said in the Dec. 31 opinion.

The state supreme court noted that the Supreme Court did not impose discipline on Webster in connection with the election suit and did not refer him or anyone else for discipline.

“Generally, scrutiny of statements made directly to a court within litigation is by the court to whom those statements are made,” the state supreme court said.

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3. Lawyers who critique critical race theory…

Lawyer Discipline

Lawyers who critique critical race theory may challenge Connecticut’s anti-bias ethics rule, 2nd Circuit says

By Debra Cassens Weiss

December 10, 2024, 12:45 pm CST

Two lawyers who fear their comments could lead to discipline under Connecticut’s anti-bias ethics rule have standing to sue, a federal appeals court ruled Monday.

The New York-based 2nd U.S. Circuit Court of Appeals revived a First Amendment lawsuit by Mario Cerame and Timothy Moynahan, report Law360, Reuters and Law.com.

Cerame and Moynahan say they regularly speak out “in forceful terms” on issues that include the free exercise of religion and critical race theory. Those with opposing viewpoints may construe the remarks as personally derogatory or demeaning, they say.

Contemplated comments by Cerame and Moynahan “are arguably proscribed” by the Connecticut ethics rule, the appeals court said in the Dec. 9 decision by Chief Judge Debra Ann Livingston, an appointee of former President George W. Bush.

Connecticut Rule of Professional Conduct 8.4(7) took effect in 2022. It bars conduct related to the practice of law that a lawyer knows or reasonably should know is harassment or discrimination based on 15 protected characteristics. Those characteristics include race, color, ancestry, sex, religion, sexual orientation, gender identity and gender expression.

The rule defines discrimination to include “harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” It defines harassment to include “severe or pervasive derogatory or demeaning verbal or physical conduct.”

A “carve-out” in commentary to the ethics rule states that conduct protected under the First Amendment does not violate the rule.

While the First Amendment carve-out could make an ethics complaint more unlikely, it “is not enough to negate [the lawyers’] reasonable fear that their proposed speech” may be banned by the rule, Livingston said.

Connecticut is one of just a few jurisdictions that have adopted anti-bias rules that are “substantially similar” to Rule 8.4(g) of the ABA Model Rules of Professional Conduct, which was adopted in 2016, the appeals court said.

In their lawsuit, Cerame and Moynahan listed the kind of comments that could lead to ethics complaints in Connecticut if made by other lawyers. Examples could include a failure to use a transgender person’s preferred pronouns, using the term “gender preference” rather than “gender orientation,” telling jokes that could offend some members of protected groups, publishing cartoons that mock a religious deity, or espousing theories that socioeconomic disparities are largely due to disparities in cognition and social behaviors among racial groups.

Cerame and Moynahan are represented by the New Civil Liberties Alliance. NCLA president Mark Chenoweth commented in a press release.

The 2nd Circuit decision “gets the rules of First Amendment standing right,” Chenoweth said. “The court distinguished on two grounds the 3rd Circuit’s recent case denying standing to plaintiffs challenging a similar rule. First, Pennsylvania’s rule, unlike Connecticut’s, focuses on intentional harassment or discrimination. Second, the Pennsylvania Office of Disciplinary Counsel interpreted the rule there not to prohibit general discussion of controversial ideas and specifically blessed plaintiffs’ planned speech as not violating the rule. Not so in Connecticut, where the rule at issue is stricter.”

The Connecticut case is Cerame v. Slack.

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3. TikTok can be sued over ‘Blackout Challenge’…

Internet Law

TikTok can be sued over ‘Blackout Challenge’ that led to death, 3rd Circuit says

By Debra Cassens Weiss

September 3, 2024, 2:53 pm CDT

A federal appeals court has ruled that a mother of a 10-year-old Pennsylvania girl who died after copying a “Blackout Challenge” that appeared on her TikTok “For You Page” can sue the social media company.

Citing allegations that a TikTok algorithm recommended the video, the 3rd U.S. Circuit Court of Appeals at Philadelphia reinstated the lawsuit filed by Tawainna Anderson, the mother of the girl who died.

The author of the Aug. 27 opinion is Judge Patty Shwartz, an appointee of former President Barack Obama.

The “Blackout Challenge” encourages viewers to choke themselves with belts, purse strings and similar items until they pass out, the suit says.

Section 230 of the Communications Decency Act generally protects social media companies from liability for content posted by third parties. But Section 230 doesn’t protect TikTok, the appeals court said, because the algorithm that allegedly presented the video to the girl was TikTok’s expressive speech, rather than information posted by another.

Original Jurisdiction, Law & Crime and the Associated Press are among the publications with coverage.

The 3rd Circuit said its decision could be different if the girl was shown the video because she had previously searched for and watched a “Blackout Challenge” video.

The 3rd Circuit said the TikTok algorithm can constitute the platform’s expressive speech under the reasoning of a recent U.S. Supreme Court decision, Moody v. NetChoice.

The July 1 Supreme Court decision said states likely can’t interfere with social media platforms’ decisions to ban political candidates or restrict content because content moderation is speech entitled to First Amendment protection.

According to the 3rd Circuit, the Supreme Court “held that a platform’s algorithm that reflects ‘editorial judgments’ about ‘compiling the third-party speech it wants in the way it wants’ is the platform’s own ‘expressive product’ and is therefore protected by the First Amendment.”

“Given the Supreme Court’s observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others’ content via their expressive algorithms,” the 3rd Circuit said, “it follows that doing so amounts to first-party speech under Section 230 too.”

Judge Paul B. Matey, an appointee of former President Donald Trump, wrote a partial concurrence and partial dissent.

Matey said TikTok reads Section 230 “to permit casual indifference to the death of a 10-year-old girl. It is a position that has become popular among a host of purveyors of pornography, self-mutilation and exploitation, one that smuggles constitutional conceptions of a ‘free trade in ideas’ into a digital ‘cauldron of illicit loves’ that leap and boil with no oversight, no accountability, no remedy.”

The case is Anderson v. TikTok.